Mandalia v Secretary of State for the Home Department

Where a foreign national student’s application for an extension of leave to remain in the United Kingdom under the Tier 4 (general) points system was deficient solely because he had been required to send to the UK Border Agency bank statements showing a specified minimum bank balance for a 28-day period before the application (as proof of funds) but the statement sent in covered only a 22-day period, albeit showing that there was a preceding statement in existence with sufficient funds, the agency should have given him an opportunity to supply the necessary additional statement before dismissing his application.

The Supreme Court so held in allowing an appeal by the applicant, Manish Mandalia, an Indian national studying in England, against the decision of the Court of Appeal (Pitchford, Davis LJJ, Sir Stanley Burnton) [2014] EWCA Civ 2; [2014] CN 27; [2014] Imm AR 588 (sub nom Rodriguez v Secretary of State for the Home Department) to affirm the decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Martin) in turn to affirm the decision of the First-tier Tribunal (Immigration and Asylum Chamber) (Judge Forrester) to dismiss his appeal against the agency’s refusal of his application for leave to remain in the United Kingdom as a student under the Tier 4 (general) points system contained in Part 6A of the Immigration Rules (and which, at the time of the application in 2012, required students to demonstrate that they had sufficient funds to support themselves by enclosing bank statements showing a minimum balance of at least £5,400 for a consecutive period of 28 days ending no earlier than a month prior to the date of the application). The application form specified the minimum balance but not the period which it had to cover, instead advising applicants to refer to the Immigration Rules and guidance thereon before filling it in. The applicant’s statement (No 64) had covered only the previous 22 days, throughout which time his credit balance had been no less than £11,000, but made reference to it being a continuation of a statement No 63, with a “carry forward” balance in excess of that amount (and which, when read with statement No 62, did show sufficient funds for the missing 6 days).

As part of the Home Secretary’s policy publications relating to the Immigration Rules, UK Border Agency caseworkers dealing with such applications at the time were given a “process instruction: evidential flexibility” document whereby, in the case of an application liable for refusal solely because of the absence of a piece of information which they had reason to believe existed — “including …bank statements missing from a series”— they were to ask the applicant for that information before determining the application. No such request was made to the applicant who was instead informed that his application had been refused and that a decision had been made for his removal. The Court of Appeal held that the requirement to inquire as to bank statements missing “from a series” did not extend to a preceding period.

LORD WILSON JSC, with whom the other members of the court agreed, said that a public authority had to follow its published policy unless there were good reasons for not doing so. The process instruction represented agency policy which in principle applied to it. The Home Secretary had not argued that there were good reasons for not following the process instruction in the applicant’s case but said instead that, properly interpreted, the process instruction had not required the caseworker to alert him to the deficit in his evidence before refusing his application. It was argued that in circumstances where the applicant had submitted a statement numbered 64, his statements numbered 62 and 63 were not “missing from a series”. That submission was misplaced. The applicant’s bank statements numbered 62, 63 and 64 formed a series. It must have been obvious to the caseworker, as he studied statement numbered 64, that it formed the last in a series and that the statement or statements which covered the preceding six days, and which turned out to be the statements numbered 62 and 63, were missing from the series. In any event, the process instruction, read as a whole, rightly stressed the need for flexibility by stating that (a) there was no limit on the amount of information which could be requested, provided that the request was not speculative; (b) bank statements missing from a series represented only an example of the further evidence which should be requested; and (c) where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt and it should be requested. The agency’s decision to reject the application was therefore unlawful because, properly interpreted, the process instruction had obliged it first to have invited the applicant to repair the deficit in his evidence.

Appearances

Abid Mahmood and Nazmun Ismail (instructed by Fountain Solicitors, Walsall) for the applicant.

James Eadie QC and Mathew Gullick (instructed by Treasury Solicitor) for the Home Secretary.